24 Fla. L. Weekly Supp. 190a
Online Reference: FLWSUPP 2402GUELInsurance — Personal injury protection — Coverage — Medical expenses — Medically necessary treatment — Where insurer’s expert did not apply statutory definition of “medically necessary” in rendering opinion on medical necessity of treatment, expert’s opinion fails to create issue of fact on medical necessity — Medical provider’s motion for directed verdict is granted
MARTINEZ CHIROPRACTIC CENTER, INC., a/a/o William Guell, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE08-013475(54). May 10, 2016. Honorable Daniel J. Kanner, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Christopher Kellam, Green Murphy & Murphy PA, Fort Lauderdale, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR DIRECTED VERDICT
THIS CAUSE having come on to be heard on April 14, 2016, on Plaintiff’s Motion for Directed Verdict and the Court having heard argument of counsel, and being otherwise advised in the Premises, it is hereupon,
ORDERED AND ADJUDGED that said Motion be, and the same is hereby GRANTED for the following reasons:
Introduction
This lawsuit arises out of Martinez Chiropractic Center, Inc.’s claim for breach of contract for Personal Injury Protection (“PIP”) insurance benefits. The claimant, William Guell, was involved in an automobile accident on May 25, 2007. At the time of the accident, William Guell was driving a motor vehicle that was insured pursuant to a policy of insurance issued by the Defendant, State Farm Mutual Automobile Insurance Company. Said policy provided $10,000.00 in personal injury protection benefits.
As a result of the May 25, 2007 automobile accident, William Guell sustained injuries for which he sought medical treatment at Martinez Chiropractic Center, Inc. Mr. Guell treated at Martinez Chiropractic Center, Inc. from June 05, 2007 through December 14, 2007.
Dr. Martinez timely submitted its bills to State Farm Mutual Automobile Insurance Company for payment. Dr. Martinez’s total bills for the services rendered to William Guell for the dates of service at issue in this lawsuit (i.e., from August 20, 2007 through December 14, 2007) totaled $3,905.00. State Farm did not pay anything for the dates of service at issue in this lawsuit based on the opinion of Dr. Ronald W. Scott, who performed a compulsory medical examination and a peer review on behalf of State Farm. Martinez Chiropractic Center, Inc. claimed that the services billed for the dates of service from August 20, 2007 through December 14, 2007 were medically necessary. State Farm denied that such treatment was medically necessary. At the time of trial, the only remaining issue was whether any of the services that were rendered by Martinez Chiropractic Center, Inc. to William Guell after August 10, 2007 were medically necessary.
The trial commenced on April 13, 2016 and the presentation of evidence concluded the next day. The Plaintiff presented testimony of Dr. Damian Martinez, D.C., William Guell, and Carri Vecchio (State Farm’s Corporate Representative). Dr. Martinez testified that all treatment after August 10, 2007 was medically necessary. Dr. Martinez applied the definition of “medically necessary” as set forth in Fla. Stat. § 627.732(2) and Fla. Stat. § 627.736 and the medical records from which Dr. Martinez testified supported his trial testimony. Dr. Martinez also testified that there is no such thing as the Board of Chiropractic standard for medical necessity. Ms. Vecchio testified that State Farm expects its experts to apply the correct standard when offering an opinion as to medically necessary services.
The Defendant relied upon the testimony of its expert, Dr. Ronald W. Scott, D.C., who was the only witness called by the Defendant. Dr. Scott’s testimony was based solely upon his previously prepared compulsory medical examination report and peer review report. While Dr. Scott did opine that all treatment after August 10, 2007 was not medically necessary, Dr. Scott’s testimony clearly revealed that he did not apply the statutory definition of the term “medically necessary” as set forth in the plain language of the Florida No-Fault statute.
At the close of the evidence, the Plaintiff moved for a directed verdict arguing that the Defendant’s witness failed to create an issue of fact as to the sole issue of the medical necessity of the services rendered by Plaintiff.
Legal Standard
“A trial court should grant a motion for directed verdict when the evidence, viewed in the light most favorable to the non-moving party, shows that a jury could not reasonably differ about the existence of material fact and the movant is entitled to a judgment as a matter of law.” Mereulo v. Mark Andrew of the Palm Beaches, Ltd., 12 So. 3d 247, 250 (Fla. 4th DCA 2009)[34 Fla. L. Weekly D907a](citing to Dep’t of Children Family Servs. v. Amora, 944 So. 2d 431, 435 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D2848a]. “A motion for directed verdict should be granted where there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the non-moving party.” Etheredge v. Walt Disney World Co., 999 So. 2d 669, 671 (Fla. 5th DCA 2008)[33 Fla. L. Weekly D2785a](citations omitted). “In considering a motion for directed verdict, the court is required to evaluate the testimony in the light most favorable to the non-moving party and every reasonable inference deduced from the evidence must be indulged in the non-moving party’s favor.” Id., at 671 (citing to Tenny v. Allen, 858 So. 2d 1192 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D2557a]. As such, the Court must determine whether the testimony of Dr. Scott presents any admissible expert evidence from which any reasonable inference may be drawn upon which a jury could reasonably conclude that the services at issue in this lawsuit were not medically necessary.
Legal Analysis
The primary basis upon which the Plaintiff argued that the testimony of Dr. Scott failed to create an issue of fact as to the medical necessity of the services is that Dr. Scott, in opining that the services at issue were not medically necessary, failed to apply the proper legal standard in formulating his opinion. The plain language of Fla. Stat. § 627.732(2) (2007) provides for the standard to be applied in PIP cases when addressing “medical necessity”. In fact, the legislature specifically defines “medically necessary”, which definition is incorporated into the jury instructions, as follows:
“Medically necessary” refers to a medical service or supply that a prudent physician would provide for the purpose of preventing, diagnosing, or treating an illness, injury, disease, or symptom in a manner that is:
a. In accordance with generally accepted standards of medical practice;
b. Clinically appropriate in terms of type, frequency, extent, site, and duration; and,
c. Not primarily for the convenience of the patient, physician, or other health care provider.
Had the legislature wanted the statute to apply a different standard it would have said so. Since it did not, this is the only standard that can be applied in a PIP case. Furthermore, since the language of the statute is clear and unambiguous, the Court must apply the standard for medical necessity as written and is not free to waiver from the plain language.
In support of Plaintiff’s argument, Plaintiff points to the testimony of Dr. Scott. When asked what criteria Dr. Scott used with regard to medical necessity, he answered: “Medical necessity is determined by the profession itself. What is the general consensus within the profession?” When asked if this was Dr. Scott’s understanding of what the definition of medical necessity was, Dr. Scott answered: “the Board of Chiropractic sets the standard for it”. The following relevant testimony was also given on page 66, lines 2-19:
Q. So did you use the Board of Chiropractic’s standard in assessing Mr. Guell in this case?
A. I would like to believe I did.
Q. Okay. And so what is the Board of Chiropractic standard with regard to medical necessity?
A. Does it fall within the scope of chiropractic practice?
Q. Did you use any other standard or criteria other than the Board of Chiropractic’s standard in assessing Mr. Guell in this case?
A. No. Just based on my training.
The Court finds that Dr. Scott, by his own admission, did not render his opinion on medical necessity by utilizing the required standard as set forth in the No-fault statute. In fact, Dr. Scott testified that he relied exclusively upon the criteria set forth by the Board of
Chiropractic. The Court finds that an expert cannot render an admissible opinion on an issue such as medical necessity in a PIP case when the expert did not even use the correct criteria or statutory definition when forming that expert opinion.
In the case at bar, looking at the evidence in the light most favorable to the Defendant, Dr. Scott did not apply the standard or criteria for medical necessity as defined in the No-fault statute. Instead, Dr. Scott applied a non-existent standard, or at the very least a standard that is not consistent with what the jury would be asked to apply when rendering its verdict. As such, the only reasonable conclusion to be drawn from his testimony is that Dr. Scott failed to take into account the elements of the statutory definition of medical necessity or otherwise apply the proper legal standard regarding medical necessity. For a verdict to be proper and for the expert opinion to be of value to the jury, the expert opinion must rely upon the same definition as the jury is instructed to rely upon. Thus, the testimony of Dr. Scott fails to create an issue of fact as to the Plaintiff’s prima facie case of medical necessity. See e.g., State Farm Mut. Auto. Ins. Co. v. Dr. J. Mark Renfroe, D.C., 915 So. 2d 212, 214 (Fla. 1st DCA 2005) [30 Fla. L. Weekly D2497a].
Based upon the testimony cited herein together with the totality of the testimony of Dr. Scott, Dr. Martinez, Ms. Vecchio, and the other evidence submitted at trial as viewed in the light most favorable to the Defendant, for the reasons stated herein and on the record, the Court finds that the Plaintiff has established its prima facie case and that the Defendant failed to create an issue of fact as to the medical necessity of the services at issue. Further, the Court finds that the testimony of Dr. Martinez was not significantly impeached. Based upon the foregoing, Plaintiff’s motion for directed verdict is hereby GRANTED. The Plaintiff is directed to submit a final judgment for the benefits and interest at issue.
